United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 9, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-40281
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RAMIRO RODRIGUEZ-JAIMES
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont
No. 1:05-CR-00001
Before DAVIS, DENNIS, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
In this appeal, we must consider whether the knowing
possession of a handgun in violation of a Texas statute
prohibiting the possession of a deadly weapon in a penal
institution is a crime of violence under the United States
Sentencing Guidelines (“U.S.S.G.”), and whether the district
court’s classification of the defendant’s prior convictions as
crimes of violence violates the defendant’s Sixth Amendment
rights under United States v. Booker, 543 U.S. 220 (2005). For
the reasons that follow, we AFFIRM.
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I. FACTUAL AND PROCEDURAL BACKGROUND
On June 23, 2005, pursuant to an oral plea agreement,
Defendant-Appellant Ramiro Rodriguez-Jaimes (“Rodriguez-Jaimes”)
pleaded guilty to one count of conspiracy to possess with intent
to distribute 500 grams or more of cocaine and 50 grams or more
of cocaine base, in violation of 21 U.S.C. §§ 841(a) and 846, and
one count of knowingly carrying a firearm during and in relation
to a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1). The presentence investigation report (“PSR”)
recommended a base offense level of thirty-seven because the
probation officer determined that Rodriguez-Jaimes was a career
offender pursuant to U.S.S.G. § 4B1.1 in that he previously had
been convicted in Texas state court of aggravated robbery and
possession of a deadly weapon in a penal institution. After he
received a three-level adjustment for acceptance of
responsibility, Rodriguez-Jaimes’s total offense level was
thirty-four. This offense level, combined with a Category VI
criminal history score, resulted in a guideline sentencing range
of 262 to 327 months.
Rodriguez-Jaimes filed two objections to the PSR, both of
which related to his classification as a career offender. First,
he claimed that his prior conviction for possession of a deadly
weapon in a penal institution was not a crime of violence under
U.S.S.G. § 4B1.1. Second, he argued that the sentencing
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enhancement violated his constitutional rights.
The district court overruled these objections and also
denied Rodriguez-Jaimes’s motion for a downward departure. On
January 25, 2006, the district court sentenced Rodriguez-Jaimes
to 290 months in prison and four years of supervised release.
Rodriguez-Jaimes timely appealed.
II. DISCUSSION
A. Career Criminal Offender Enhancement
Rodriguez-Jaimes argues that the district court erred in
concluding that his prior conviction for possession of a deadly
weapon in a penal institution qualifies as a crime of violence
for purposes of the career criminal offender enhancement under
U.S.S.G. § 4B1.1. Section 4B1.1 of the Sentencing Guidelines
provides for an increased sentence to be imposed upon career
criminal offenders. A defendant is a career criminal offender
under the Guidelines if:
(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or
a controlled substance offense.
U.S.S.G. § 4B1.1(a). Section 4B1.2(a) defines a “crime of
violence” as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that–
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
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of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves the use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.
The application notes to the Guidelines further explain that:
“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as “crimes of violence” if (A) that offense has
as an element the use, attempted use, or threatened use
of physical force against the person of another, or (B)
the conduct set forth (i.e., expressly charged) in the
count of which the defendant was convicted involved use
of explosives (including any explosive material or
destructive device) or, by its nature, presented a
serious potential risk of physical injury to another.
Id. § 4B1.2 cmt. n.1.
Rodriguez-Jaimes contends that his prior conviction for
possession of a deadly weapon in a penal institution does not
qualify as a crime of violence because it does not meet either
definition under U.S.S.G. § 4B1.2(a).1 The government concedes
that Rodriguez-Jaimes’s prior conviction does not qualify as a
crime of violence under U.S.S.G. § 4B1.2(a)(1) because the
statute under which Rodriguez-Jaimes was convicted, Texas Penal
1
There is no dispute that Rodriguez-Jaimes was over
eighteen years old at the time of the instant offense or that the
instant offense is a felony that is a controlled substance
offense for purposes of U.S.S.G. § 4B1.1. In addition,
Rodriguez-Jaimes does not dispute that his prior conviction in
Texas state court for aggravated robbery qualifies as a crime of
violence.
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Code § 46.10,2 does not have “as an element the use, attempted
use, or threatened use of physical force against the person of
another.” Instead, the government claims that Rodriguez-Jaimes’s
prior conviction for possession of a deadly weapon in a penal
institution falls within the “otherwise involves conduct that
presents a serious potential risk of physical injury to another”
clause of § 4B1.2(a)(2).
Whether a defendant’s prior conviction can be classified as
a crime of violence under the Sentencing Guidelines is a question
of law. See United States v. Guevara, 408 F.3d 252, 259 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1080 (2006). We review the
district court’s interpretation and application of the Guidelines
de novo. Id.
Under § 4B1.2(a)(2), “a categorical approach is taken to
2
The statute provides in full:
(a) A person commits an offense if, while confined in a
penal institution, he intentionally, knowingly, or
recklessly:
(1) carries on or about his person a deadly weapon; or
(2) possesses or conceals a deadly weapon in the penal
institution.
(b) It is an affirmative defense to prosecution under
this section that at the time of the offense the actor
was engaged in conduct authorized by an employee of the
penal institution.
(c) A person who is subject to prosecution under both
this section and another section under this chapter may
be prosecuted under either section.
(d) An offense under this section is a felony of the
third degree.
TEX. PENAL CODE ANN. § 46.10 (Vernon 2003).
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determine whether the charged count of conviction, by its nature,
presented a serious potential risk of physical injury.” United
States v. Insaulgarat, 378 F.3d 456, 467 (5th Cir. 2004). “[A]
crime is a crime of violence under § 4B1.2(a)(2) only if, from
the face of the indictment, the crime charged or the conduct
charged presents a serious potential risk of injury to a person.”
United States v. Charles, 301 F.3d 309, 314 (5th Cir. 2002) (en
banc). “Physical injury need not in fact result, but the
indictment must make it clear that the crime charged in fact
posed the risk.” Insaulgarat, 378 F.3d at 467.
The indictment in this case reveals that:
Ramiro Rodriguez Jaimes, on or about the 13th day of
June, One Thousand Nine Hundred and Ninety-Four, and
anterior to the presentment of this indictment, in the
County of Jefferson and State of Texas, did then and
there while confined in a penal institution, namely:
Jefferson County Detention Facility, intentionally and
knowingly possess and conceal a deadly weapon, to-wit: a
firearm, namely, a handgun, that in the manner of its use
and intended use was capable of causing serious bodily
injury and death . . . .
Thus, the question we face under our categorical approach is
whether the specific conduct charged in the indictment by its
nature poses a serious potential risk of physical injury.
Specifically, we must decide whether intentionally and knowingly
possessing and concealing a handgun while confined in a penal
institution constitutes conduct which by its nature presents a
serious potential risk of physical injury to another.
This court recently decided a similar issue. In United
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States v. Robles-Rodriguez, No. 05-41768, 2006 WL 3716153 (5th
Cir. Dec. 14, 2006) (unpublished), we addressed whether the
defendant’s knowing possession of a prohibited object
(specifically, a six-inch metal shank) in a federal correctional
facility constituted a crime of violence under U.S.S.G.
§ 4B1.2(a)(2). Id. at *1. Recognizing that this was an issue of
first impression, we looked to other circuit courts that had
addressed this issue. See id. at *2 (citing cases from other
circuits). These circuits all agreed that possession of a
prohibited weapon while in prison is a crime of violence under
the Guidelines. See, e.g., United States v. Kenney, 310 F.3d
125, 137 (3d Cir. 2002) (holding that the defendant’s possession
of a razor blade, in violation of a statute prohibiting
possession of contraband by an inmate, was a crime of violence);
United States v. Vahovick, 160 F.3d 395, 397 (7th Cir. 1998)
(holding that the defendant’s possession of a prohibited object
in prison, consisting of pencils bound together, was a crime of
violence); United States v. Young, 990 F.2d 469, 472 (9th Cir.),
cert. denied, 510 U.S. 901 (1993) (holding that possession of a
shank in violation of a California statute prohibiting possession
of a deadly weapon in prison is a crime of violence). This
circuit followed the reasoning of other circuits in holding “that
knowing possession of a prohibited object designed and intended
to be used as a weapon constitutes a crime of violence under the
Sentencing Guidelines.” Robles-Rodriguez, 2006 WL 3716153, at
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*2.
In Robles-Rodriguez, the court also considered the same
argument that Rodriguez-Jaimes presents here, namely that the
crime of possession of a deadly weapon in prison is similar to
the crime of unlawful possession of a firearm by a felon outside
of prison, the latter of which is not considered a “crime of
violence” for purposes of determining whether a defendant is
career criminal offender. Id. at *3. In rejecting this
argument, we emphasized that “the possession offense occurs in
prison, rather than in the outside world. That fact creates a
perpetual risk of injury and precludes any legitimate reasons
that a non-incarcerated individual could have for possessing a
weapon (e.g., recreation).” Id.; see also Vahovick, 160 F.3d at
397 (holding that “there is simply no acceptable use for a weapon
by an inmate in a prison for there always exists in such
possession the ‘serious potential risk of physical injury to
another’” and distinguishing the crime from unlawful possession
outside of prison because “prisons are inherently dangerous
places and they present unique problems”); Young, 990 F.2d at 472
(“The confines of prison preclude any recreational uses for a
deadly weapon and render its possession a serious threat to the
safety of others. By its nature, therefore, the possession of a
deadly weapon by a prison inmate presents ‘a serious potential
risk of physical injury to another.’”).
Although Robles-Rodriguez involved the knowing possession of
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a metal shank in a federal correctional facility, its reasoning
applies with equal force here. We therefore adopt the reasoning
of Robles-Rodriguez in holding that the knowing possession of a
handgun in violation of a Texas statute prohibiting the
possession of a deadly weapon in a penal institution is a crime
of violence under U.S.S.G. § 4B1.2(a)(2). Accordingly, we
conclude that the district court did not err in enhancing
Rodriguez-Jaimes’s sentence as a career criminal offender under
the Guidelines.3
B. Sixth Amendment Claim
Rodriguez-Jaimes also contends that the district court’s
classification of his prior convictions as crimes of violence
violated his Sixth Amendment rights under Booker, 543 U.S. 220.
We recently rejected this argument in United States v. Guevara.
In Guevara, the defendant argued that the district court
sentenced him in violation of his Sixth Amendment rights by
3
We also reject Rodriguez-Jaimes’s argument that the
district court’s classification of Rodriguez-Jaimes as a career
criminal offender violated the Supreme Court’s holding in Shepard
v. United States, 544 U.S. 13 (2005). In Shepard, the Supreme
Court held that in determining the character of an offense in the
context of applying the Armed Career Criminal Act, the court is
“limited to examining the statutory definition, charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented.” Id. at 16. The district court here
correctly followed the categorical approach mandated by the
Supreme Court and this circuit and looked solely to the charging
instrument in making its determination. In addition, the
district court did not consider any facts outside the indictment.
Cf. Shepard, 544 U.S. at 26.
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deciding that he committed a crime of violence. 408 F.3d at 260-
61. This court started with the Supreme Court’s decision in
Booker, explaining that
[t]he question Booker answered in the affirmative was
“[w]hether the Sixth Amendment is violated by the
imposition of an enhanced sentence under the United
States Sentencing Guidelines based on the sentencing
judge’s determination of a fact (other than a prior
conviction) that was not found by the jury or admitted by
the defendant.”
Id. at 261 (quoting Booker, 543 U.S. at 229 n.1) (emphasis
added). We reasoned that aside from the defendant’s age, “the
determinations made in the course of a career offender
classification are all questions of law; in other words, they are
precisely the determinations the above-quoted italicized language
exempts.” Id. In holding that there was no Sixth Amendment
violation, we concluded that “[c]areer offender status is not ‘a
sentencing judge’s determination of a fact other than a prior
conviction.’” Id.
Our decision in Guevara forecloses Rodriguez-Jaimes’s
constitutional claim. Absent an en banc or intervening Supreme
Court decision, one panel of this court may not overrule a prior
panel’s decision. See United States v. Treft, 447 F.3d 421, 425
(5th Cir.), cert. denied, 127 S. Ct. 555 (2006). Accordingly, we
conclude that the district court did not err in overruling
Rodriguez-Jaimes’s objection under Booker.
III. CONCLUSION
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For the foregoing reasons, we AFFIRM Rodriguez-Jaimes’s
judgment of conviction and sentence as imposed by the district
court.
AFFIRMED.
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